(concurring)—I concur in the majority opinion that summary judgment was inappropriate. If Rose Wahl's testamentary heirs had moved for summary judgment in their favor, it should have been granted because all of the facts are present before the court.
Lay people are encouraged to look to lawyers for advice regarding disposition of their property upon death. Neal and Rose Wahl were of one mind respecting this matter. They executed wills in 1962 and 1963 respectively providing for a 90-day survival period before the survivor would receive the deceased spouse's estate. This is to be expected because they had no children and had only collateral heirs. This was reaffirmed some 10 years or more later when they executed a codicil. At the same time they executed a community property agreement which, if effective, would defeat the 90-day provision. The only available evidence of the intent of these apparently inconsistent actions was of the attorney who drew them who stated that such legal effect did not occur to him. So, of course, the Wahls did not know of the inconsistency and the frustration of the codicil they had just executed. Any other interpretation would make their acts on that day irrational.
A community property agreement is just another con*820tract, subject to the same tests, infirmities and problems of any contract if it does not truly reflect the intent of the contracting parties. If there is a mistake of fact, the contract is not effective. As found in In re Estate of Geer, 29 Wn. App. 822, 629 P.2d 458 (1981), a mistake of law is not grounds for avoidance of an agreement in the absence of fraud or some like cause. This rule is limited to cases where a party misunderstands the legal consequences of his agreement; where the parties are mistaken as to their antecedent rights, the mistake of law rule has not been applied, and such mistakes are treated as mistakes of fact. Geer, supra. In that case both parties negotiated a settlement involving an estate upon the admittedly erroneous advice of the attorney for the estate. Since the parties were mutually mistaken as to their antecedent rights, the court properly voided the agreement. I am compelled to conclude that Neal and Rose Wahl were obviously mistaken as to their rights to inherit under the will and codicil since, in executing the community property agreement the same day, they were not advised of the legal effect of that agreement. Thus, since Neal Wahl has not survived 90 days, Rose Wahl's estate should pass to her heirs under the will, which was not only her intent, but also the intent of her husband Neal, as expressed in the abortive holographic will.
Reconsideration denied June 16, 1982.
Review granted by Supreme Court September 24, 1982.